In Obama’s America, even when you play by the regime’s rules, you still lose, financially and legally. Just ask Kawa Orthodontics, which invested time and resources in complying with the Obamacare employer mandate, a central component of President Obama’s signature legislative “achievement.”
The law declares that businesses with 50 or more employees are considered “large employers” who must provide “affordable, minimum essential” health insurance coverage to employees and their dependents. Large employers additionally have annual reporting obligations under the PPACA.
In 2013, preparing for the employer mandate soon to go into effect, Florida business Kawa Orthodontics put up its own money to comply. However, because the administration decided to ignore the law and delay implementation of the mandate, Kawa, and who knows how many other businesses, lost some, if not all, of the value of the time and money that could have been used for other, productive purposes.
That’s why on May 14, 2015, Judicial Watch filed a petition for a writ of certiorari in the U.S. Supreme Court on Kawa’s behalf, arguing the Obama administration’s 2013 delay of the employer mandate caused Kawa to lose “the value of the time and money it spent in 2013 preparing for the mandate to take effect in 2014,” and thereby suffer significant economic harm (Kawa Orthodontics, LLP v. Secretary, U.S. Department of the Treasury, et al. (No. 14-10296). Kawa Orthodontics is owned by Dr. Larry Kawa.
In December 2014, the U.S. Court of Appeals for the 11th Circuit ruled it would not address the central question of Kawa’s legal challenge — whether the executive branch could “ignore the clear, congressionally imposed deadline” of the PPACA — because it concluded Kawa did not demonstrate injury sufficient to establish legal standing.
Judicial Watch argues, however, contending that: "Delay diminishes the time value of money . . . Kawa Ortho plainly alleged that because of the delay, it lost some, if not all, of the value of the substantial time and resources it expended at least two years early. It lost the time value of the money it spent on anticipatory compliance costs.
"Contrary to the panel’s ruling, Kawa Ortho has standing. It was injured by Defendants’ delay of the enforcement of the ‘employer mandate’ provisions of the ACA. Had Defendants not delayed enforcement, Kawa Ortho’s spending would not have been premature.
Also, the 11th Circuit’s ruling conflicts with previous Supreme Court precedent.
"In National Federation of Independent Businesses v. Sebelius, the Court resolved whether the individual mandate was constitutional. Although it did not address standing, by reaching a decision, it implicitly affirmed the court of appeals’ analysis.
"In that case, the court of appeals held that private parties challenging the constitutionality of the ACA’s 'individual mandate' had standing to pursue their claims based on their need to incur anticipatory compliance costs."
Additionally, the Eleventh Circuit’s ruling conflicts with the jurisprudence of other circuit courts:
"Like this court, other courts of appeals have concluded that incurring anticipatory compliance costs is a sufficient injury to confer Article III standing. In Liberty University v. Sebelius, the U.S. Court of Appeals for the Fourth Circuit held that the plaintiff-employer in that case, Liberty University, had standing to challenge the employer mandate because of the anticipatory compliance costs it had to incur in order to comply with the mandate.
"In Association of Private Sector Colleges & Universities. v. Duncan, the U.S. Court of Appeals for the District of Columbia Circuit concluded that the plaintiffs were sufficiently injured to confer standing because they faced increased compliance costs . . . Similarly, the Second and Sixth Circuits have held that plaintiffs incurring compliance costs have standing."
Obama’s refusal to follow the very law he pushed for has major consequences for American businesses. This case is yet another instance in which a responsible and rational business has been injured by a politically motivated, unilateral power grab by the executive branch.
Attempting to comply with the law, Kawa instead suffered significant economic harm so that the president and influential special interests could avoid accountability for Obamacare’s impacts. The idea that the courts would shut down challenges to this lawlessness is disheartening.
Dr. Kawa is pleased with Judicial Watch’s help and wants justice:
“I’m humbled by the opportunity to stand up for the Constitution. Our Founders created a system of checks and balances designed so that no one branch of government would become too powerful. When the executive branch decided to rewrite the laws as they saw fit without the consent of Congress, they overstepped their authority, causing injury and harm to myself as a business owner. With the great help of Judicial Watch, I look forward to the opportunity to have our day in court and have justice served.”
It is no surprise the Obama administration does not want Kawa to have its day in court, but the Supreme Court should uphold the rule of law.
Tom Fitton is the president of Judicial Watch. He is a nationally recognized expert on government corruption. A former talk radio and television host and analyst, Tom is well known across the country as a national spokesperson for the conservative cause. He has been quoted in Time, Vanity Fair, The Washington Post, The New York Times, and most every other major newspaper in the country. For more of his reports, Go Here Now.
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